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December 20, 2021
Appeals court reinstates OSHA vaccine-or-test ETS

On December 17, a federal appeals court lifted a stay on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) requiring large employers to implement a program of COVID-19 vaccination for employees or coordinate weekly testing. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, the agency said in a statement and on an agency webpage, and will not issue citations for noncompliance with the standard’s testing requirements before February 9.

A three-judge panel at the U.S. Court of Appeals for the 6th Circuit split 2–1 in favor of lifting the stay issued by the 5th Circuit appeals court on OSHA’s November 5 ETS. The emergency rule requires employers with 100 or more employees to implement a program of COVID-19 vaccination or regular testing and face coverings to protect unvaccinated workers.

When OSHA issued the ETS in November, the compliance deadline for the testing requirement was January 4, but the agency announced it is exercising enforcement discretion and delaying enforcement to February 9 as long as employers demonstrate a good-faith effort to comply. The ETS also is a proposal for a permanent COVID-19 standard. Comments on the rulemaking (OSHA-2021-0007) are due January 19.

Covered employers must determine the vaccination status of their employees and maintain records of employee vaccination status, as well as remove infected workers from the workplace, only allowing them to return once they meet return-to-duty criteria. A worker who is not fully vaccinated must be tested for COVID-19 at least weekly if the worker is in the workplace at least once a week. A worker must be tested within 7 days before returning to work if the worker is away from the workplace for a week or longer. The rule requires employers to provide paid time off for vaccination and recovery from vaccine side effects but does not require employers to pay for COVID-19 testing.

Trail: From White House to OSHA to courts

The OSHA ETS is part of a federal COVID-19 response plan unveiled at the White House September 9 that included vaccination orders for federal employees and contractors and a Centers for Medicare and Medicaid Services (CMS) rule requiring COVID-19 vaccinations for workers in healthcare settings that receive Medicare or Medicaid reimbursement.

The CMS rule and the order for federal contractors are subject to separate federal court challenges.

When OSHA issued the ETS, a group of states and employers’ representatives filed challenges in federal court. The emergency rule was indefinitely stayed November 12 by the U.S. Court of Appeals for the 5th Circuit before lawsuits were consolidated and moved to the 6th Circuit appeals court in Cincinnati.

Attorneys for the Department of Labor (DOL) filed a petition November 23 asking the 6th Circuit appeals court to lift the stay. The ETS would “save thousands of lives and prevent hundreds of thousands of hospitalizations,” the DOL argued in its filing.

The court’s majority largely agreed with the Labor Department. In the court’s majority decision, Judge Jane B. Stranch found that OSHA was within its emergency rulemaking authority under the Occupational Safety and Health Act to issue the ETS. The court also determined OSHA may issue rules for infectious diseases, including those that pose a danger both within and outside the workplace.

“The responsibility the Act imposes on OSHA to protect the safety and health of
employees, moreover, is hardly limited to ‘hard hats and safety goggles,’” Stranch wrote.

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